People v. Johnson

• Decision Date: 03 January 1980
• Docket Number: Docket No. 78-1459
• Citation: 94 Mich.App. 551,288 N.W.2d 456
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas JOHNSON, Defendant-Appellant. 94 Mich.App. 551, 288 N.W.2d 456
• Court: Court of Appeal of Michigan — District of US

Page 456

288 N.W.2d 456

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas JOHNSON, Defendant-Appellant.

Docket No. 78-1459.

94 Mich.App. 551, 288 N.W.2d 456

Court of Appeals of Michigan.

Jan. 3, 1980.

Released for Publication Feb. 28, 1980.

[94 MICHAPP 553] Richard R. Lamb, Kalamazoo, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James J. Gregart, Pros. Atty., Stephen M. Wheeler, Asst. Pros. Atty., for plaintiff-appellee.

Before WALSH, P. J., and KELLY and OPPLIGER, ^* JJ.

OPPLIGER, Judge.

Defendant was charged with the offense of assault with intent to rob while armed. He appeals his convictions by a jury of the lesser included offense of felonious assault, M.C.L. § 750.82; M.S.A. § 28.277, and as an habitual offender, second offense, M.C.L. § 769.10; M.S.A. § 28.1082. He was sentenced on January 17, 1978, to a prison term of 51/2 to 6 years. Defendant's motion for a new trial was denied on February 14, 1978.

Defendant raises a number of claims of error. We find that the impeachment of defendant with evidence of a conviction obtained without counsel 16 years earlier denied him a fair trial and warrants reversal. In addition to the impeachment issue, several of defendant's claims of error merit consideration.

Defendant first challenges the rule of People v. Chamblis, 395 Mich. 408, 429, 236 N.W.2d 473, 483 (1975), that "(i)n any case wherein the charged offense is punishable by incarceration for more than two years, the court, whether or not requested,[94 MICHAPP 554] may not instruct on lesser included offenses for which the maximum allowable incarceration period is one year or less". The trial court, on the basis of the Chamblis rule, denied defendant's request that the jury be instructed on several misdemeanor offenses. Defendant argues that this rule impermissibly invades the province of the jury to find the facts, denies the defendant effective assistance of counsel, and is without rational basis.

We find this claim to be without merit. The Supreme Court in Chamblis stated that the purpose of the rule was to prevent unexplainable compromise verdicts. That is a permissible objective, and it is reasonable to assume that crimes punishable by more than two years imprisonment are more serious and present a greater possibility of compromise than those which are punishable by less than two years imprisonment. Effective assistance of counsel is not denied, as defense counsel may argue to the jury that the prosecutor levied the wrong charge against the defendant. Further, the jury must find each element beyond a reasonable doubt before it may convict.

Because we uphold the application of the rule in Chamblis, supra, to defendant's conviction for felonious assault, we find no merit in defendant's argument that it was improper to base the habitual offender charge on a felony conviction in which the jury was not allowed to consider a lesser included misdemeanor offense. People v. Kamin, 405 Mich. 482, 275 N.Y.2d 777 (1979), People v. Choate, 88 Mich.App. 40, 49, 276 N.W.2d 862 (1979).

Defendant next argues that the trial court's refusal to either dismiss the supplemental habitual offender information or impanel a new jury to hear the habitual offender charge violated his [94 MICHAPP 555] constitutional privilege against self-incrimination. Defendant had testified with regard to the charge on the principal information and been impeached by a prior conviction which formed the basis of the supplemental information.

At trial when defendant considered testifying with regard to the principal charge, the question arose as to what effect impeachment of defendant by his prior convictions would have if the same jury was allowed to hear the habitual offender charge. The trial court recognized that it had discretion to impanel a new jury to hear the habitual offender charge. People v. Stratton, 13 Mich.App. 350, 164 N.W.2d 555 (1968). The trial court ruled to allow cross-examination regarding prior convictions, but stated that a new jury would be impaneled if defendant so moved.

Upon defendant's conviction for the lesser included felony, felonious assault, trial commenced on the supplemental information charging defendant as an habitual offender, second offense. The trial court expressed on the record a desire to impanel a new jury, but believed that jeopardy had already attached. Because the defendant did not move to dismiss the jury and the trial court felt that it could not, trial commenced on the habitual offender charge with the same jury. A cautionary instruction was given that the jury should disregard anything heard in the previous trial.

Enhancement of punishment under M.C.L. § 769.10; M.S.A. § 28.1082, for habitual offenders is not a separate proceeding from the trial on the principal charge. People v. Stratton, supra. Jeopardy attached when the jury was initially impaneled and sworn. People v. Gardner, 62 Mich. 307, 29 N.W. 19 (1886), People v. Williams, 85 Mich.App. 258, 271 [94 MICHAPP 556] N.W.2d 191 (1978). For the trial court to dismiss the jury on its own motion and impanel a new one without defendant's consent would have violated defendant's constitutional protection against double jeopardy. People v. Williams, supra.

Defendant moved to dismiss the supplemental information but did not move to dismiss the jury. Since the trial court had already indicated its willingness to impanel a new jury, defendant was in primary control over the course to be followed....